Cleaning up the EPA

Alexander VolokhNewport News (Va.) Daily Press, October 27, 1996

"I don't care if you've got a billion dollars," Bill Clinton told a Michigan
audience recently. "In the end, the quality of your life will be undermined
unless we save the environment for everybody."

Clinton was applauding a legislative measure, announced by Attorney General
Janet Reno, that would outlaw "attempted" environmental crimes.

Written to facilitate environmental sting operations, it would let prosecutors
freeze criminal defendants' assets and, in the event of a conviction, allow
using the money to finance cleanups.

The legislation would also increase enforcement funding, raise penalties for the
worst offenders (especially those that cause toxic injury or imperil law-
enforcement officers) and authorize restitution to environmental agencies and
victimized communities.

If the solution to environmental problems were more and bigger penalties, then
Mr. Clinton's plan might sound promising. But the problem lies elsewhere.

Environmental law is massive, vague, complicated and technical.

Even the head of the Environmental Protection Agency, Administrator Carol
Browner, speaks of "a complex and unwieldy system of laws and regulations and
increasing conflict and gridlock."

The National Law Journal found that 70 percent of corporate lawyers believe that
compliance with all environmental laws is impossible.

Don Clay, former assistant administrator of the EPA Office of Solid Waste and
Emergency Response, calls hazardous-waste law “a regulatory cuckoo land of
definition.” He believes that only five people in the agency know what a
hazardous waste is.

"Everyone has his or her own favorite inconsistency" in hazardous-waste law,
reports environmental attorney Judson Starr.

If a solvent is poured first on machinery and then wiped with a clean rag, the
rag is a hazardous waste, Mr. Starr says. “However, if the solvent is poured
first on the rag and then is used to wipe the machinery clean, the rag is not a
hazardous waste. Go figure."

Moreover, people can be prosecuted criminally for unintentional offenses.

The erosion of the link between criminal prosecution and moral fault is one of
the lesser-known (and more scandalous) stories of environmental law.

In ordinary cases, a criminal conviction –- and the stigma and possible
imprisonment that come with it -- generally requires criminal intent. But with
environmental law, intent is no longer necessary.

The Supreme Court in 1993 upheld a conviction of sewage plant operators for
"knowing discharge of pollutants exceeding permit limits."

Incredibly, the government argued that a defendant named Weitzenhoff had
criminal intent even though he thought he was complying with the permit. He
knew he was discharging waste water, and that was all that was necessary.

Since Weitzenhoff's job as a Honolulu Sewage Treatment Plant worker was
precisely to discharge waste water, the government had to prove only that he
knew he was doing his job.

Clinton is right that attempted crime should be prosecuted. But what is
"attempted crime" and who are "criminals" in a world where one can commit a
crime without knowing it?

Clinton's bill also fails to recognize the EPA's "more is better" approach to
enforcement. Prosecutions, fines, and convictions -- not environmental
quality -- have become ends in themselves.

The EPA sets numerical targets, exults when quantities increase and issues
concerned memos when they decrease.

As Robert Adler and Charles Lord of the Natural Resources Defense Council put
it, EPA personnel should "take their enforcement responsibilities seriously and
view enforcement as more than a ‘bean-counting' exercise."

"Bean-counting" is exactly what Clinton's plan would encourage, however.

Seizing the assets of suspected criminals, as his bill would do, would not only
impair defendants' ability to obtain adequate legal defense.

Allowing seizures would also encourage the EPA to increase its revenue by
targeting wealthy companies instead of really serious polluters, who may be
poor, fly-by-night operators with shallow pockets.

Clinton's environmental crime bill may do more harm than good. Environmental
criminal law already has less protection for the accused than criminal law
generally.

Government agents have tremendous leeway to search private property without
warrants and demand self-incriminating information.

The federal government works with state governments to prosecute defendants
repeatedly, and criminal penalties are routinely inflated through federal
sentencing guidelines.

Yet the Republicans are trying to beat Clinton at his own game of EnviroCop.

According to the House Commerce Committee, "The Republicans gave the EPA an 8.5
percent increase in funding this year and a 26 percent increase since they took
control of Congress. . . . Despite the 8.5 percent increase in funding, Bill
Clinton's EPA did a whole lot less with a whole lot more."

Environmental inspections are actually down 45 percent since Clinton took
office, administrative actions are down 18 percent, civil penalties are down 39
percent, and criminal penalties are down 60 percent.

The Republicans' bashing of the EPA for low numbers is as misguided as the EPA's
own striving after high numbers. Both Clinton and the Republicans should
simplify environmental law and reserve criminal penalties for the morally
blameworthy.

They should also reform enforcement so it is fairer, relies on cooperative
problem-solving approaches instead of confrontation and results in environmental
improvements.

One simple but important reform would be to stop micro-managing internal company
decisions about what technologies to use and switch to simply setting standards
for how much pollution is acceptable.

This would free up enforcement resources and increase companies' flexibility --
without compromising environmental quality.

Another necessary reform is the protection of environmental audits.

Today, when companies do voluntary audits to check how well they're complying
with environmental regulations, they can be fined, criminally prosecuted or sued
by citizen groups if they uncover past violations.

Many firms, afraid of such prosecution, don't even do audits in the first place.

If, as Clinton suggested, the environment were in dire straits and in need of
imminent salvation, draconian measures would be appropriate and it wouldn't
matter if we had a billion dollars.

But environmental problems today are neither a plague nor a holocaust. They are
real, but usually localized and manageable.

Because they are real, they deserve attention. But because they are localized,
the federal government is usually ill-suited to address them.

And because they are manageable, we should be skeptical of draconian,
adversarial solutions, whether they come from Clinton or House Republicans.

Alexander Volokh is an assistant policy analyst at the Los Angeles-based
Reason Foundation and is co-author of Environmental Enforcement: In Search of
Both Effectiveness and Fairness, a recent study released by the think tank.